Assessing the Genuineness of a Work Permit Offer of Employment

Canada’s Immigration and Refugee Protection Regulations (the “IRPR“) states that a work permit application must be refused if an officer determines that the offer of employment is not genuine.

Section 200(5) of the IRPR states that in order to determine whether an offer of employment is genuine an officer should consider (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, (b) whether the offer is consistent with the reasonable needs of the employer, (c) whether the terms of the offer are terms that the employer is reasonably able to fulfill, and (d) the past compliance of the employer with federal or provincial laws that regulate employment.

Immigration, Refugee and Citizenship Canada’s (“IRCC“) guidelines contain extensive instructions to officers on assessing the genuineness of the offer of employment on a work permit application.

Actively Engaged

In order to demonstrate that an employer is actively engaged in the business an employer must do all of the following:

  • have an operating business;
  • provide either a good or a service; and
  • have a physical work location in Canada where the temporary worker will work.

The following are some red flags that can trigger an in-depth assessment of whether a company is actively engaged in the business.

  • the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old);
  • there is negative publicly available information regarding the organization; and
  • previous work permit applications were refused because officers had concerns about whether an employer was actively engaged in the business.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Example of an employer actively engaged in the business

The owner of a high-end Japanese restaurant in Toronto would like to hire a Japanese sous-chef. His business has been open for 6 years and employs 36 people, including 8 foreign nationals.

An officer may be satisfied that the organization legally exists and has the ability to provide stable employment for the requested period because it does all of the following:

has been open for several years

already employs several people

provides food and drink in a physical space (that is, the restaurant)

Example of employer that may not be actively engaged in the business

The owner of a small Japanese “bento-box” delivery restaurant in Toronto would like to hire a Japanese cook. His business has been open for 5 months and employs 2 other people. He cannot provide the officer with T4s (his business is too new), nor can he provide a lease because he operates his business from home. He pays his employees with cash or in food, which they don’t mind because they are family members. He shows the officer order slips for produce bought last month.

Even if an officer is satisfied that this business may be operational, provides a good and has a work location, it has not “demonstrated the ability to provide stable employment for the requested period” because it is too new and does not pay its employees in a consistent and reliable way.

Reasonable Employment Need

In order for an employer to show that the offer of employment is consistent with the reasonable employment needs of the employer, the employer must demonstrate that the  offer of employment is reasonable in relation to the type of business the organization is engaged in.  Specifically, the occupation should be one that is reasonably expected in that organization’s sector, and the employer must be able to meet the terms of employment that they have offered.  In other words, the employer must be able to satisfactorily explain the role of the temporary worker in their operations and how it covers a reasonable employment need, in terms of both occupation and operation.

The IRCC website contains the following examples of when an employer might not be able to demonstrate that there is a reasonable employment need:

  • An insurance company is hiring a full-time actor.
  • A company has only 10 employees, and this is the sixth supervisor position they have offered in the last year.
  • A hair salon is hiring a management consultant.

Ability to Fulfill 

An employer must be able to demonstrate that the terms of employment are ones that they can reasonably fulfill. They must demonstrate that they are capable of providing, for the duration of the work permit, the hours of work, wages and benefits stated in the offer of employment.

Officers may request the following documents to show whether an employer can fulfill the terms of the job offer:

  • T4 Summary of Remuneration Paid
  • T2 Schedule 100/125
  • T2125 or equivalent
  • worker’s compensation clearance letter
  • business contracts.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A well-established restaurant chain is hiring a specialty cook. The chain has been in existence for over 10 years and is known for its exemplary food and service.

The restaurant chain is able to demonstrate that it is “capable of providing, for the duration of the work permit, work in line with the occupation, wages offered and acceptable employment standards” because they are well established and have several years of income to prove they can afford the new cook.

Negative example

A new home-based business is hiring a person to prepare food for a new gourmet meal delivery service. The owner of the new business declared a profit of only $10,000 the previous year, but they are going to be paying the temporary worker $45,000 a year.

The new business is not able to show that they have sufficient funds to pay the wages offered, nor do they have business contracts to show that they would be able to meet the terms of the offer based on monies to be received through the contracts.

Compliance with Federal / Provincial Law

Finally, an officer must be satisfied that the employer will be and has been compliant with federal and provincial or territorial laws regulating employment.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A British Columbia mining company is hiring a temporary worker. There are several news articles referencing the fact that they have won prestigious safety awards in their industry and that they are a top 50 company to work for.

Unless the officer has any indication to the contrary, they could be satisfied that this company has a common practice of compliance with “federal and/or provincial laws regulating employment and recruitment in the province(s) it is intended that the temporary worker will work” based on having won awards for safety and being one of the top 50 companies in Canada.

Negative example

An Alberta mining company has just received a provincial court judgement that they are guilty of involuntary manslaughter because of a lack of safety equipment on their work sites that caused the death of 2 workers.

The Alberta mining company has been found guilty in a provincial court of not complying with provincial and federal laws. Therefore, they do not meet this requirement, and the work permit would be refused.

Other Factors

It is important to understand that in determining whether an offer of employment is genuine, officers can go beyond the prescribed factors described above.  In Singh v. Canada (Citizenship and Immigration), Madam Justice Kane noted that where it appears that an employer is hiring a family member, and that the motivation appears more to help the family member than to fill a vacancy, then the genuineness of a job offer can be doubted.  Madam Justice Kane wrote:

I do not accept the applicant’s argument that the factors in subsection 200(5) are the only factors that can be considered to determine the genuineness of a job offer or that they should be interpreted so narrowly that the Officer’s legitimate concerns about the genuineness of a job offer could not be considered. In addition, paragraph 200(5)(a), whether the offer is consistent with the reasonable employment needs of the employer, is a broad question which would include consideration of a range of relevant factors, including: the nature of the business; the nature of the particular employment offered; the size of the business; the volume of sales; and, the number of employees. In my view, it would not be consistent with the reasonable employment needs of an employer in a specialized area, such as a jewellery business, to offer employment to a person who has not provided objective evidence of their qualifications and experience and whose personal connection to the business owner appears to be a higher priority than the objective and legitimate needs of the employer and business owner for a qualified jewellery appraiser.


Do Cruise Ship Employees Need Work Permits?

 

Attributed to mjb84 on Flickr.

Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit.  The Regulations state:

R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation

Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“).

What is a Member of a Crew

As per the Guidelines, on a cruise ship, crew members include:

  • licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers;
  • non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and
  • the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.

Crew members do not include:

  • supernumeraries: spouses, children and other dependants of crew members;
  • foreign contractors and shipping company technicians: foreign nationals temporarily assigned to a vessel for the sole purpose of making repairs;
  • shipping company superintendents, including persons referred to as supercargo, superintendent engineers, or port captains;
  • employees or executives of a marine transportation company who travel aboard or who visit ships to monitor or supervise operations such as maintenance and repairs, preparation of cargo holds, preparation for inspection, and the loading or unloading of cargo; and
  • insurance company representatives who travel on vessels to familiarize themselves with shipboard operations on behalf of ship-owners’ insurers.

“Engaged Primarily in International Transportation”

IRCC’s Guidelines state in order to determine whether a means of transportation is “engaged primarily in international transportation” that an officer should consider whether the transportation falls under the definition of “coasting trade” in Canada’s Coasting Trade Act.  If the transportation does fall under the definition of “coasting trade” in the Coasting Trade Act, then a work permit will be required.

The Coasting Trade Act defines “coasting trade” as (definition simplified for ease of reading):

(a) the carriage of goods by ship from one place in Canada to any other place in Canada, either directly or by way of a place outside Canada;

(b) subject to paragraph (c), the carriage of passengers by ship from any place in Canada situated on a lake or river to the same place, or to any other place in Canada, either directly or by way of a place outside Canada;

(c) the carriage of passengers by ship from any place situated on the St. Lawrence River northeast of the Saint Lambert lock or on the Fraser River west of the Mission Bridge

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(d) the carriage of passengers by ship from any place in Canada other than from a place to which paragraph (b) or (c) applies

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(e) the carriage of passengers by ship

(i) from any place in Canada to any place above the continental shelf of Canada,

(ii) from any place above the continental shelf of Canada to any place in Canada, or

(iii) from any place above the continental shelf of Canada to the same place or to any other place above the continental shelf of Canada;

where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada, and

(f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to waters above the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; (cabotage)

Given how complicated the definition of coastal trading is, the following should provide a useful summary of when crew members do and don’t need work permits.
Foreign National Crew Will Need a Work Permit When

A work permit may be required if a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, if a cruise ship embarks all passengers in Montreal, disembarks some passengers in Charlottetown, and continues to New York where the remaining passengers disembark, then foreign crew members will require a work permit.

Foreign crew members will also typically require a work permit if the ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port. For example, if passengers embark in Victoria, make a stop in Anchorage, Alaska, and end their cruise in Vancouver, then the foreign national crew will likely need require a work permit.

Foreign National Crew May Be Exempt When

Foreign crew will typically be exempt from the requirement to obtain a work permit when a cruise ship embarks and disembarks at the same destination within Canada, even if it makes stops in foreign jurisdictions. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, and then returns to Halifax then a work permit may not be required.  If this seems odd given that the start and end destinations are in Canada, it is simply because of how the Coastal Trading Act defines coastal trading.

Foreign workers may also be exempted if a cruise ship starts at a Canadian port of call, and ends its itinerary at a foreign port of call, so long as passengers do not disembark elsewhere in Canada. For example, if a cruise ship embarks in Vancouver, and disembarks in Portland, then foreign crew will likely be exempt.

Continue reading “Do Cruise Ship Employees Need Work Permits?”


How the Post-Graduate Work Permit Program Works

The Post-Graduation Work Permit (“PGWP“) allows students who have graduated from most Canadian public post-secondary institutions to stay and work in Canada upon graduation.  As someone who remembers when I was in undergrad the frustration of international students who had to leave Canada upon graduating even though they would have jumped at the opportunity to stay, work, and pay taxes in Canada, it is certainly a welcome program.

PGWPs are open work permits. This means that international graduates who possess them can work for any employer.  There is no restriction on the type of work that can be performed.  Having said that, if a student wishes to work in health care or in education they will need to first obtain a medical exam. And, as with all work permits, PGWP holders are prohibited from working in the sex industry.

There is no requirement for a job offer prior to applying.

Eligibility

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

If an international student in Canada completes a post-secondary program of study that is two or more years, the student can apply for a three-year work permit. If the program of study is between eight months and two years, then the student will be eligible for a work permit lasting for a period equal to the duration of the student’s  studies.

How to Apply

An international graduate must submit the application for a PGWP within 90 days, from either the date their final marks are issued or when they receive a formal written notification of graduation from the institution, whichever comes first, indicating that they have met the requirements of their program of study.

As well, their study permit must continue to be valid when you submit your application for a work permit.

The work permit application package and guide can be found on the Immigration, Refugees and Citizenship Canada’s website here. The checklist can be downloaded here. In addition to the standard forms and documents that are required for work permit applications, PGWP applicants are required to provide the following:

Combining Programs

One question that frequently arises is what would happen if a student obtains a second one-year diploma after having already completed a one-year diploma prior to that.  Would the student be eligible for a one year PGWP or a two-year one?

The answer is that the length of the two one-year degrees may be combined to obtain a three-year work permit.  For example, a student who obtains a one-year diploma program in Canada, and then completes a one-year MBA, well receive a three year PGWP.

Distance Learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWP.

After much uncertainty over how this distance-learning policy was to be interpreted, pursuant to the IRCC website officers are recommended to use the following guidelines in their assessment of an applicant’s PGWP eligibility when they have taken distance or online learning in Canada:

  • when less than the majority of all the credits earned by the student toward the completion of a program of study were earned by completing online courses, a post-graduation work permit may be issued based on the length of the program as confirmed by the school, including credits earned from both in-class and online courses; and
  • when the majority of the credits earned by the student toward the completion of a program of study were earned by completing online courses, the applicant is ineligible for the PGWP, as the program may reasonably be considered a distance-learning program.

Implication of Doing a Victory Lap and Going on Exchange

While the PGWP requires full-time study, there is an exception for people in their last semester.

As well, going on exchange outside of Canada will not result in someone being ineligible to obtain a PGWP.

Open Spousal Work Permits

The spouse or common-law partner of a PGWP holder can obtain a work permit only if the PGWP holder is working in a skilled occupation as defined in National Occupational Classification 0, A or B of the National Occupational Classification website. To demonstrate this, the spouse or common-law partner should show the following.

  • a letter from their current employer confirming employment or a copy of their employment offer or contract; and
  • a copy of 3 of their pay stubs.

Refusal Rates

One of the more surprising things about the PGWP is its rather high refusal rate.  Indeed, during the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March the refusal rate was 40% or more.

Although a breakdown of the reasons for refusal of PGWP applications has not been published, it is likely because international graduates either:

  • attended a private school whose graduates are not eligible to receive PGWPs (which, contrary to the opinion of some private institutions) is mot of them;
  • their application was returned for being incomplete and when they tried to apply again their study permit had expired; or
  • a visa officer determined that they did not meet the full-time studies requirement.

In order to avoid such rejections, it is important that students:

  • research their prospective educational institution so that they know whether it qualifies;
  • ensure that their PGWP application is complete and that it includes the correct fee amount; and
  • if there is any question about whether their studies were full-time, to make sure that it is explained in their application.

As with all applications, the onus is on the applicant to make sure that they have shown that they meet the requirements of the PGWP.  If something is unclear, the visa officer is not under any obligation to seek clarification, but can refuse the application. For this reason, it is imperative that international graduates ensure that their application is complete and satisfactory.


Global Skills Strategy – Short Term (15 or 30 days) Work Permit Exemption

On February 6, 2018 Immigration, Refugees and Citizenship Canada (“IRCC”) clarified how its short term work permit exemption under the Global Skills Strategy would work.  Previously, the IRCC website simply stated:

Now, the IRCC website provides a much more comprehensive explanation of how the short term work permit exemption under the Global Skills strategy works.

General Conditions

The short-term (15 or 30 days) work permit exemptions are for certain high-skilled work and apply to foreign nationals coming to Canada to perform work that is both of a short duration (15 consecutive calendar days or 30 consecutive calendar days) and is in an occupation that is listed in skill type 0 (management occupations) or skill level A in the National Occupational Classification (“NOC”) matrix.

Such individuals may work in Canada without a work permit.

The periods can be as follows:

  • 15 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 6 months); or
  • 30 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 12 months).

The short-term work permit exemptions do not exempt people from the requirement to obtain a temporary resident visa or an electronic travel authorization, if applicable.

Entering and Exiting Canada

While foreign nationals are allowed to exit and re-enter Canada within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively, regardless of whether the person is actually working in Canada.

IRCC is now specifically stating that any travel outside Canada after the date the exemption was granted will not extend the length of the exemption period. They provide the following example:

The foreign national was granted a 15-day exemption on August 1, 2017. If they travel outside Canada for 2 days within that 15-day period (August 6 to August 7, 2017), they may resume work activities on August 8 under this exemption until August 15, 2017, only.

Applicants from Inside Canada

Applicants already in Canada are not eligible to make an initial application within Canada for this exemption.

Renewals

Applicants can benefit from these short-term exemptions only if the necessary amount of time has elapsed since their last short-term exemption was granted. Consecutive uses are not permitted.

IRCC provides the following example on its website:

If a foreign national entered Canada under the 15-day work permit exemption and is required to work in Canada for another 15 days, they will not be eligible to renew their stay as a temporary worker. Six months must pass before foreign nationals are eligible to use the 15 day exemption again.

Working with Multiple Employers

IRCC on February 6, 2018 also clarified that the short term work permit exemption applies to the foreign national and not to the employer.

As well, if a foreign national enters Canada under the 15-day or 30-day work permit exemption and intends to work for more than one employer during that period, the foreign national is required to demonstrate that the work they intend to perform during that period meets the requirements of the short-term exemptions for all of their employers.

 


The Post-Graduation Work Permit

Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s).  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.

Eligibility and Validity

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were indeed full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Finally, unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.  They will only be eligible if the PGWP holder obtains skilled employment, and can demonstrate this to IRCC by presenting an offer of employment as well as a copy of one or more pay slips.

Ongoing Complications

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.

Indeed, the PGWP has a surprisingly high refusal rate. During the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March was 40% or more. 


Work Permits for Post-Doctoral Fellows and Research Award Recepients

Immigration, Refugees and Citizenship Canada has a Labour Market Impact Assessment (“LMIA“) exemption for post-doctoral fellows awarded a Doctorate of Philosophy and research award recipients. The advantage of such an exemption is that a person can obtain a work permit without the need of the prospective employer to first test the Canadian labour market.

Post-doctoral fellows holding a Ph.D. or its equivalent

To qualify for a work permit under this LMIA exemption, the prospective foreign worker must:

  • have completed, or be expecting to complete shortly, their doctorate;
  • be working in a field related to that in which they earned, or are earning, their Ph.D.;
  • be the direct recipient of the award involving work and remuneration;
  • actively contribute to and benefit a Canadian research project;
  • demonstrate academic excellence or expertise in a field related to the particular work to be undertaken;
  • be working in a time-limited position that reflects the experience and expertise of the applicant and the role that they will play on the project;
  • have a significant role to play or value to add to the research project.
  • hold an official position or an affiliation or registration with a credible academic or educational institution or agency in their country of citizenship or residence.

The post-doctoral fellows can either be the direct recipients of theaward or be offered a time-limited position to undertake research on behalf of or as part of a team of researchers.

Awards

In order for a person to receive a work permit based on an award, the prospective foreign worker must have received an award that was:

  • given based on merit and academic excellence;
  • based on the result of a competitive assessment and review process.
  • not be primarily for recruitment or commercial purposes

The employer must be a credible Canadian academic or educational institution or agency, or a closely affiliated organisation

Approval Rates

As can be seen in the table below, the approval rate for these types of work permits is very high, and is typically over 95%.

 


Judges, Referees, and Work Permits

Does a rodeo announcer require a work permit and a Labour Market Impact Assessment to give background information on radio contestants during a rodeo?  The answer is.. it depends.

Section 186(m) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(m) as a judge, referee or similar official at an international amateur sports competition, an international cultural or artistic event or competition or an animal or agricultural competition;

Amateur Sports Competitions and Events

The Citizenship and Immigration Canada (“CIC“) website states that for judges, referees and similar officials involved in an international amateur sports competition, the event should be organized by an international amateur sporting association and should be hosted by a Canadian organization.  The distinction between “organizing” and “hosting” becomes important, and supporting documents needs to reflect this.

The CIC website further states that events may include international or university games, winter or summer Olympics, etc., and that an “amateur” sports competition is generally defined as one in which the participating athletes are not paid to compete or otherwise participate in the event.  The CIC website notes that there are exceptions to this, as of course in recent decades the line between “professional” sporting events and “amateur” sporting events has become blurred.

Cultural or Artistic Competitions and Events

The CIC website states that judges or adjudicators of artistic or cultural events such as music and dance festivals are included in IRPR r. 186(m), as are judges for animal shows and agricultural competitions.

So what about the rodeo announcer? The following is what CIC’s rationale in the approval of an application under this exemption was based on the facts provided to them. I note that this was not my file, but rather a copy of an approval that I obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36-2


Performing Artists and Work Permits

I was recently asked whether an opera singer working in Canada for three months requires a work permit and a Labour Market Impact Assessment.  The answer is.. it depends.

Section 186(g) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(g) as a performing artist appearing alone or in a group in an artistic performance — other than a performance that is primarily for a film production or a television or radio broadcast — or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if

(i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and

(ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.

No Work Permit Required

Examples of performing artists who do not need a work permit to work in Canada include:

  • Foreign-based musical and theatrical individuals and groups and their essential crew;
  • street performers (buskers), DJs;
  • busking;
  • a foreign or traveling circus;
  • guest artists (not employed) within a Canadian performance group for a time-limited engagement;
  • wrestlers from the World Wrestling Entertainment, Inc. (WWE) (and similar groups);
  • persons performing at a private event for a time-limited engagement, such as a wedding;
  • air show performers;
  • conductors;
  • artists working at or attending a showcase or workshop; which may include competing, judging competitors, demonstrating their skill, and holding a class related to the showcase or
  • workshop, as well as visual artists creating or displaying their own work (normally no more than five days, although some flexibility in duration may be permitted); and
  • rodeo contestants (e.g., bronco-riders, steer-ropers, barrel racers).

Of course, in addition to meeting the above sample activities, the performing artists must also be part of a foreign production or group, or be a guest artist in a Canadian production or group, performing a time-limited engagement. As well, they cannot be in an employment relationship with the organization in Canada that is contracting for their services.  The Citizenship and Immigration Canada (“CIC“) website, states that a “time-limited engagement” would typically be two weeks or less, however, it also states that a longer duration is possible.  In the case described at the start of this post, CIC determined that the three-month contract that the opera singer had constituted a time-limited engagement.  The CIC website does explicitly state, however, that a foreign national who rehearses and performs with a Canadian orchestra for an entire season needs a work permit.

The CIC website also has a somewhat confusing list of what scenarios would constitute an “employment relationship,” and what would not.  The threshold appears to be whether a performing artist moves beyond a short-term ‘gig’ and into a regular performance basis, usually in the same venue.  For example, the CIC website states that an employment relationship is not created where a couple hires a band to perform at their wedding, or where a festival hires a signer to perform twice in a weekend.  However, an employment relationship is created where a dinner theatre hires a foreign singer to perform five nights a week on a weekly basis for four weeks or longer, or where a city contracts a foreign puppeteer to do three shows a day in a park for the whole summer.

A Note on Bars

Canadian immigration legislation previously provided that performing artists who would be performing at bars, restaurants, or similar establishments needed a work permit.  This, however, is no longer the case.  As such, foreign artists performing in Canada for time-limited engagements are treated the same, irrespective of venue.

Work Permit Required

Examples of activities that do not constitute being a “performing artist” for the purpose of the work permit exemption include:

  • Actors, singers, crew, etc., in Canadian theatrical productions, shows, or circuses;
  • screen and television actors, unless part of a group making a motion picture under intergovernmental co-production;
  • artists involved in taped television dramatic productions and live dramatic performances that are being filmed;
  • technicians working in film theatre and television productions (with certain exceptions);
  • persons doing dubbing work in films;
  • persons making a film, videotape or sound recording for use in advertising commercials;
  • persons participating in making a motion picture or documentary, no matter who finances the project, unless they meet certain exemptions available to the news media;
  • persons temporarily occupying a permanent position at a permanent performing arts organization (i.e., those not considered to be guest artists).
  • individuals involved in making films, television, internet and radio broadcasts (with the exception of co-production agreements);
  • individuals who will be in an employment relationship with the organization or business contracting for their services in Canada;
  • performers in Canadian-based productions or shows; and
  • rodeo performers or side show workers (e.g., rodeo clowns and announcers, horsemanship or trick riding displays, ‘half-time acts’ and other specialty act entertainers).

Specific Examples, and Other Exemptions

The CIC website lists numerous examples of occupations that are similar to performing artists, and what the work permit requirements are.  This webpage is useful because it illustrates that there are a myriad of work permit and/or Labour Market Impact Assessment (“LMIA”) exemptions that a person may be encompassed by.

For example, while an Adjudicator at a music festival would not be a performing artist, officials at international cultural festivals are specifically exempted from the requirement to obtain work permits.

A circus employee who travels with a foreign circus would not require a work permit. However, where the employer is a Canadian circus, then a work permit and LMIA will be required. An exception to this, however, is Cirque du Soleil, whose employees will typically be granted Significant Benefit work permits.

Film producers employed by foreign film or television companies coming to produce a film or documentary entirely funded from abroad are not performing artists, however, they are likely exempt from obtaining work permits as Business Visitors.

The World Wrestling Entertainment

Fans of the WWE will perhaps be interested to know how CIC treats their favourite wrestlers.  The CIC website states:

World Wrestling Entertainment

These performers and their accompanying essential crew may be authorized to enter Canada pursuant to R186(g) which includes a stipulation that the performance not be “primarily for a film production or television or radio broadcast”. While most of their staged performances are broadcast live in a pay-per-view format or filmed for later commercial broadcast, this is not considered to be the primary purpose of the performance.

A substantial portion of the WWE’s revenues from live events does stem from simultaneous or subsequent broadcast and film. However, a substantial portion is also received from ticket sales to the live events. Furthermore, if the primary intent of these performances were not to attract and entertain a live audience, then there would be no reason for the WWE to undertake the expense and inconvenience of offering a touring performance.

Note: The R186(g) exemption does not apply to any WWE workers directly involved in the film, television or radio broadcast elements of the production. This includes all WWE camera operating positions.